If you have been alive and sentient over the last several months, you were undoubtedly following the story of the arrest of Dominique Strauss-Kahn, known as DSK, on an airplane destined for Paris and subsequent charge of sexually assaulting Nafissatou Diallo, a hotel housekeeper, at the Sofitel Hotel in New York City. DSK was the Managing Director of the International Monetary Fund at the time and was widely regarded as a leading candidate for French President. He was (and still is) married to an independently wealthy, French television journalist. The criminal charges made headlines in the international press for weeks.

After a follow up investigation, the Manhattan District Attorney, Cyrus R. Vance, Jr., dismissed the charges. In the dismissal papers, Vances’s office pointed out a number of circumstances causing doubt about the credibility of Ms. Diallo. In its dismissal motion, Vance’s office made a very interesting statement. The motion said, “If we do not believe her [Ms. Diallo] beyond a reasonable doubt, we cannot ask a jury to do so.” Let’s examine that statement from the viewpoint of the ethical duties of prosecutors and consider more broadly the ethical and moral questions surrounding the criminal prosecutor’s job.

Probable Cause Versus Beyond a Reasonable Doubt

The clear import of the dismissal statement is that a criminal prosecutor should believe in a case beyond a reasonable doubt before pursing it to the point where he would ask a jury to convict on the basis of that same standard of proof. Mr. Vance set an extraordinarily high bar for his office to follow in this regard. What do the Rules of Professional Conduct say about it? Rule 3.8(a) states: “The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” That is not a very high standard and there is an awful lot of daylight between probable cause and beyond a reasonable doubt.

Did Mr. Vance really mean it? While there appears to have been a strong basis for doubting Ms. Diallo’s general credibility, surely Mr. Vance knows nothing about what actually happened in that hotel room. With equivocal forensic evidence, the only two people who know the truth are Ms. Diallo and DSK. She says it was forcible and he says it was consensual. This is often the case when non-consensual sexual behavior is charged—a classic he said, she said situation.

If Ms. Diallo had previously lied about other important matters, was she lying about the question of consent? Not necessarily. Even a habitual liar sometimes tells the truth. The challenge lies in figuring out when a known liar is lying, and more to the point, for a prosecutor, his own personal beliefs aside, to assess whether a jury will believe the testimony of someone who will be shown at trial to have lied about other things.

Mr. Vance’s dismissal rationale implies that he (or someone in his office) must be convinced beyond a reasonable doubt before taking a case to a jury. This standard is intriguing given that the typical prosecutor, as in the DSK case, has no actual knowledge of truth or innocence; simply the unremarkable ability to render an opinion about guilt or innocence on the basis of the same evidence a jury will be asked to evaluate. For a prosecutor to be personally convinced beyond a reasonable doubt of a defendant’s guilt is a very different matter from believing there is evidence from which a reasonable jury could be persuaded to convict. In the former case, the personally skeptical prosecutor might know full well that a conviction before a jury is possible. Take the DSK case itself. It is not hard to imagine a New York jury taking a hotel housekeeper’s word over that of a rich, elite foreigner who was a known philanderer. In the latter case, personal prosecutorial beliefs about guilt or innocence aside, it would make little sense to squander resources on a probable loser.

Knowing What You Don’t Know

I somehow doubt Mr. Vance really believes his own rhetoric or that he would want to be held to that standard in all cases his office prosecutes. In the run-of-mill criminal prosecution, there is typically evidence from which a conscientious prosecutor could in good faith infer that the defendant is guilty beyond a reasonable doubt. But what of the cases at the margins? I think (and hope) that it is an extraordinarily rare case where a prosecutor continues to purse it when he believes the defendant is actually innocent.

More typically, in those cases at the margins, the prosecutor will simply be agnostic about the defendant’s guilt or innocence. Those cases will often boil down to deciding which witnesses are telling the truth and which ones are lying. While a prosecutor may have his own sense of that, we ordinarily look to juries to make that assessment. Mr. Vance, however, would seemingly have prosecutors trump that jury function in all cases except those where the prosecutor affirmatively believes beyond a reasonable doubt in the truth-telling of the witnesses who will be relied upon to support a verdict of guilt. The ethical framework for the prosecutor under the Rules of Professional Conduct states that it is sufficient if he has probable cause, after which he may in good conscience consider it to be the job of a jury to determine whether the quantum of proof meets the beyond-a-reasonable-doubt standard.

Beyond the Minimum

But the Rules of Professional Conduct do not fully occupy the field. For example, there are aspirational standards that go further The American Bar Association Criminal Justice Standards—The Prosecution Function, state that a prosecutor should not pursue charges absent sufficient admissible evidence to support conviction. Among the factors to be considered in exercising prosecutorial discretion is the prosecutor’s own reasonable doubt about whether the accused is guilty.

In 2008, the ABA House of Delegates added two new provisions to the Model Rule of Professional Conduct dealing with the prosecutor’s special role—provisions that the Indiana Supreme Court has not adopted, at least as of now. One provision, Model Rule 3.8(g), places on the prosecutor a duty to make post-conviction disclosure of “new, credible and material” evidence that creates a “reasonable likelihood” that a convicted defendant did not commit the crime. The other, Model Rule 3.8(h) requires the prosecutor to seek to remedy a conviction when he “knows of clear and convincing evidence establishing that a defendant … was convicted of an offense that the defendant did not commit….” If a prosecutor is under a duty to correct a conviction on a clear and convincing evidence standard, surely more than probable cause should support an effort to convict in the first instance.

Let’s also not rule out the prosecutor’s own conscience, sense of morality and philosophy of prosecution. It is perfectly appropriate for a prosecutor to be governed by those consideration when exercising the discretion that is inherent in the public office. One of the reasons we ask prosecutors to stand for re-election from time to time is so the voters can express their support for or disagreement with the quality of decision-making undertaken on their behalf.

Says Who?

An equally interesting question concerns whose prosecutorial certainty is germane to whether a criminal case should go forward? Prosecutor’s offices are not unified entities. What one deputy prosecutor believes is proof beyond a reasonable doubt another might believe is a flawed prosecution.

There was an intriguing case several years ago (in Manhattan, no less, but when Robert Morgenthau was prosecutor) in which the deputy prosecutor assigned to a case became personally convinced that the defendants were innocent. The procedural context of the case was that the convicted defendants were trying to get their convictions set aside. The deputy prosecutor remonstrated with his bosses by raising his qualms about advocating in support of the conviction. He was told that his bosses did not share his concerns, at least not to the point where they believed the defendants were innocent. The deputy prosecutor did not seek to be relieved of responsibility for the case, in part because he thought a new deputy prosecutor who did not share his concerns would succeed in having the convictions upheld. Nor did he quit his job in protest. Instead, he essentially threw the case. He was quoted as saying, “I did the best I could to lose.” And he did. The convictions were set aside.

Heroes or Villains

In his 2010 Tabor Lecture at Valparaiso University School of Law, Georgetown University Law Center Professor of Law and Philosophy, David Luban, discussed this case and held the deputy prosecutor up as a moral hero. Prof. Luban’s lecture was published as The Conscience of a Prosecutor, 45 Val. U. L. Rev. 1 (2010) if you would like to read it for yourself.

I take Prof. Luban’s point, and it is not one to be trivialized. But is also problematic. Prosecutors are unique among lawyers: they have no client. Or if they do, their client is more of an idea (the public interest) than a person or a thing. The typical lawyer looks to his client for instruction and must carry out those instructions so long as they are ethical and legal, or else resign from the engagement. See generally, Indiana Rules of Professional Conduct 1.2(a) and 1.16(a)(1). The prosecutor does not have the luxury of a client who can speak. The public interest is expressed at the ballot box where the voters decide who will exercise prosecutorial discretion on their behalf. Once elected, there is no mechanism for seeking further guidance from the electorate. It is the elected prosecutor who, in addition to being the public’s lawyer, is understood to have the ultimate authority to give voice to the views of the “client.”

The Morality of Subversion

What should we make of a situation where an agent of the elected prosecutor subverts the guidance of his boss by throwing a case based on a belief that the defendant is innocent (and assuming that the boss’s contrary assessment of the case is made in good faith and not corruptly)? Lawyers who work in hierarchical environments, like law firms, including prosecutor’s offices, have guidance from the Rules of Professional Conduct. For example, Rule 5.3(b) removes from a subordinate lawyer personal ethical accountability for carrying out the directions of a supervisor so long as those directions are consistent with “a reasonable resolution of an arguable question of professional duty.” If not, the subordinate lawyer’s responsibility is to withdraw from the representation. Rule 1.16(a)(1). And possibly to report the supervisor’s misconduct. Rule 8.3(a).

Lawyers who work within or represent corporate hierarchies, are directed to go up the ladder until their concerns are taken seriously and properly addressed. Rule 1.13(b). If continuing to represent the client would violate the Rules of Professional Conduct, the lawyer must withdraw and in some circumstances may make disclosures outside the corporation in order to protect it from the wrongdoing of corporate insiders. Rule 1.13(c). But under neither of these scenarios is the lawyer authorized to act faithlessly to his principal by covertly subverting the supervisor’s or client’s instructions.

Civil Disobedience?

Prof. Luban suggests that the New York deputy prosecutor was engaged in a type of honorable civil disobedience because his subversion of authority was quite possibly all that stood between innocent men and the abhorrent result of spending more years in prison. Prof. Luban may be right, but it is not without serious reservations that I accept his point of view. It requires an extraordinarily high degree of confidence, perhaps even hubris, for a deputy prosecutor to be so sure of the rightness of his cause that he is willing to throw a case contrary to the legitimate disagreement of his supervisor. After all, it was his ultimate boss, not he, who was elected to make the hard decisions on behalf of the state’s citizens.

Moreover, this is not the type of conduct that we normally equate with civil disobedience. The venerable history of civil disobedience is generally marked by two features that were missing in that New York case: First, civil disobedience has typically been reserved as a last resort to protest the application of immoral laws, not as a means of expressing disagreement with an alternative perspective on a single application of an otherwise just law. Second, the grand tradition of civil disobedience has been marked by a willingness, indeed, an invitation, to be punished for engaging in the act. Think of the lunch counter sit-ins during the Freedom Rides in the 1960’s. Part of the power of civil disobedience to transform society was the willingness of those who refused to conform to unjust laws to accept punishment. Viewed through this lens, the conduct of the conscientiously objecting deputy prosecutor seems more subversive than honorable.

Conclusion

By my lights, some of the hardest ethical and moral questions faced by lawyers arise in the criminal justice system. This is so, in part, because so much is at stake. Loss of liberty on the one hand and protection of society on the other. It is also so because the awesome power and resources of the State are often aligned against a hapless defendant with an overworked and unpaid public defender as his only champion. One hopes that the decision to go forward with any criminal prosecution is marked by serious reflection on all that is at stake. As stated by the Supreme Court in Berger v. United States, 295 U.S. 78 (1935) the prosecutor is not a representative of an ordinary party, but a representative of the sovereign whose interest is not in winning but in seeing that justice is done. Whether to carry forward with a prosecution in the face of the prosecutor’s doubts about the case is surely one of those hard questions.